dismissed L-1A Case: Interactive Media

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W , Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
File: WAC-03-048-5278 1 Office: CALIFORNIA SERVICE CENTER Date: F k$ 1 8 2005 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. tj 1101(a)(15)(L) 
fN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
.- 
(~obert P. Wiemann, Director 
Administrative Appeals Office 
WAC-03-048-5278 1 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its CEOIManaging 
DirectorICreative Director as an L-1A nonimmigrant intracornpany transferee pursuant to section 
101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1101(a)(15)(L). The petitioner is 
a corporation organized in the State of California that is engaged in the business of interactive media 
and market research. The petitioner claims that it is the subsidiary of 
ated in Nacka, Sweden. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the evidence of 
record shows that the beneficiary will be employed in a primarily managerial or executive capacity. In 
support of this assertion, counsel submits a brief statement on Form I-290B. While counsel indicated on 
Form I-290B he would be submitting a brief andlor additional evidence within 30 days of filing the appeal, as 
of the date of this decision, the AAO has received no further documentation or correspondence from counsel 
or the petitioner. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 5 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section.. 
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full time employme~it 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
WAC-03-048-52781 
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(iv) Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The primary issue in the present matter is whether the beneficiary will be employed by the United States 
entity in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 9 1101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) exercises discretion over the day to day operations of the activity or function fc~r 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 9 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) directs the management of the organization or a major component or function of th~e 
organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision making; and 
(iv) receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
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In a November 25, 2002 letter submitted with the initial petition, the petitioner described the beneficiary's job 
duties as follows: 
1. Act as Chief Administrative Officer to plan, develop and establish policies and 
objectives of the company; 
2. Coordinate functions and operations between divisions and departments, to establish 
responsibilities and procedures to attain objectives; 
3. Review activity reports and financial statements to determine progress towards goal:;; 
4. Revise objectives and plans in accordance with current conditions; 
5. Plan and develop production, labor, and public relations policies designed to improve 
company image and relations with customers and employees; 
6. Direct and coordinate all activities involved with promotion and sales of services 
offered; 
7. Determine services to be offered based on demand and customer reaction to services 
performed and current market conditions; 
8. Negotiate for equipment and products for production; 
9. Through subordinate managerial personnel, establish policies to utilize human 
resources, equipment and material productively; 
10. Develop basic presentation approach for company representative to utilize in layout 
design and copywriting; 
1 1. Confer with department heads to discuss client requirements and scheduling; 
12. Coordinate creative activities; 
13. Review and approve all projects and materials developed by staff prior to final 
presentation to client for approval. 
[The beneficiary] is familiar with the product and services to be offered, as well as being ii 
successful and sought-after designer . . . . Although his time in the US will be devoted to the 
commencement and management of the US office, his dual position as Creative Director 
allows him to supply the necessary input to guide the company to where it wants to go in 
such a hot and competitive market. 
WAC-03-048-5278 1 
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On February 3, 2003, the director requested additional evidence. Specifically, the director requested: (1) an 
indication of the total number of employees of the petitioner; (2) a more detailed description of the 
beneficiary's duties in the United States, including an indication of the beneficiary's subordinates and their 
titles and duties, and the beneficiary's day-to-day duties over the last six months; (3) copies of the petitioner's 
quarterly State wage reports for the previous four quarters, including the names, social security numbers, and 
number of weeks worked for each employee; (4) copies of the petitioner's Forms 941, Quarterly Wage Report, 
for the previous four quarters; (5) copies of the petitioner's payroll summary, Forms W-2 and Forms W-3 
showing wages paid to employees; (6) a list of specific discretionary decisions that the beneficiary exercised 
over the previous six months and evidence that the higher level executives, the board of dir~ectors, or 
stockholders of the petitioner require only general supervision of the beneficiary; and (7) signed copies of the 
petitioner's 2002 federal income tax documents. 
In a response dated April 24, 2003, the petitioner submitted: (1) a statement further describing the 
beneficiary's duties and those of his alleged subordinates; (2) copies of the petitioner's California State Forms 
DE-6 for the fourth quarter of 2001 and the third quarter of 2002; (3) copies of the petitioner's Forms 941, 
Employer's Quarterly Federal Tax Return, for the four quarters of 2002; (4) a copy of the petitioner's 2002 
Form W-3; (5) a copy of the beneficiary's 2002 Form W-2; (6) a copy of the petitioner's 2002 Form 1120, 
U.S. Corporate Income Tax Return and accompanying schedules; and (7) copies of documents reflecting that 
the petitioner employed an unpaid intern for the summer of 2002. In the attached statement, the ]petitioner 
described the beneficiary's duties as follows: 
[The beneficiary] manage[s] and control[s] not only, the entire function of the [petitioner] but 
also the entire operation of both companies in their entirety . . . . [The beneficiary has] the 
utmost decision-making power who [sic] serves as the brain and heart of the entire company. 
[He has] the discretionary power to hire or fire any employee within the company, to create ,a 
new department within the corporation or to completely shut down the entire operation. [He 
has] the discretionary power over day-to-day operations of [the petitioner], and [has] the 
ability to makes decisions of utmost importance in relation to the company and its proper 
functioning. [He has] the power to deny any and all suggestions or decisions by other 
managerial or professional personnel of the company if inappropriate or not feasible for the 
company's ultimate success. 
The petitioner provided a lengthy list of duties that the beneficiary will perform. As this list is part of the 
record, it will not be fully quoted herein. Among the entries on the list, the petitioner stated that the 
beneficiary will "establish policies of the company and ensure that they are strictly followed by [the] 
company's professionals such as Print Art Director, Website Art Director, and other professionals of the 
company." The petitioner provided that the beneficiary will "coordinate and control functions and operations 
between divisions of the company to make sure that all divisions are interrelated and that they are following 
and complying with their specific objectives and procedures." The petitioner stated that the beneficiary will 
"evaluate activities of professional employees to determine progress towards goal." The petitioner indicated 
that the beneficiary will "exercise full discretionary decision-making power in directing and coordinating all 
activities involved with promotion and services offered by the company." 
WAC-03-048-5278 I 
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The petitioner described its staffing as follows: 
The current number of employees at the [petitioner] where the Beneficiary will be emp1oye:d 
is three, although it is expected to increase up to eight by the end of the year 2003. 
Note that at the present time [the petitioner has] the following employees in the US: 
1. Print Art Director - . . . [The beneficiary's wife] is currently not receiving any remuneration 
from the [petitioner] because of the many problems [it] had in trying to stay in business. Sh~e 
is currently working on a volunteer basis . . . . She is devoting full time efforts to the 
company. Her duties include: 
a. Formulating concepts for customer projects and supervising workers engaged in 
executing layout designs for art work and copy to be presented by visual 
communications media (much of this supervision is supervising the employees in 
Sweden who are preparing project designs), such as the Internet and print media. 
b. She reviews illustrative materials and confers with clients and [the beneficiary:/, 
regarding budget, background information, objectives, presentation approaches, 
styles, techniques, and related production factors. 
c. She formulates basic layout design concepts for printing and conducts research to 
select and secure suitable illustrative material. 
d. She conceives and assigns production of material and detail to artists and 
photographers for extra details and optimum success of the company. 
e. She assigns and directs staff members both here in the US and in Sweden to 
develop design concepts into art layouts and prepares layouts for printing. 
f. She reviews, approves, and presents final layouts to [the beneficiary] for 
approval. 
2. Website Art Director - . . . [The petitioner employs] an intern who has selflessly dedicated 
her time and creativity to the success of our company as well without any remuneration. She 
is performing the following duties, emphasizing website development, and creating attractive 
and irresistible websites for our clients, in designing captivating banners, and creating ancl 
developing concepts that would keep our company successful despite competition. 
a. Formulating concepts for customer projects and supervising workers engaged in1 
executing layout designs for art work and copy to be presented by visual 
communications media such as the Internet. 
b. She reviews illustrative materials and confers with clients and [the beneficiary], 
regarding budget, background information, objectives, presentation approaches, 
styles, techniques, and related production factors. 
c. She formulates basic layout design concepts for websites and conducts research 
to select and secure suitable illustrative material. 
WAC-03-048-5278 1 
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d. She conceives and assigns production of material and detail to artists arld 
photographers for extra details and optimum success of the company. 
e. She assigns and directs staff members both here in the US and in Sweden to 
develop design concepts into art layouts and prepares web layouts. 
f. She reviews, approves, and presents final layouts to [the beneficiary] for 
approval. 
On August 28, 2003, the director denied the petition. The director determined that the petitioner did not 
establish that the beneficiary will be employed in the United States in a primarily managerial or executive 
capacity. Specifically, the director stated that the petitioner's documentation reflects that the beneficiary is the 
sole paid employee, and that no wages were paid in 2002. The director found that "[tlhere is no evidence on 
record of a subordinate staff of professional, managerial or supervisory personnel to relieve the beneficiary 
from performing non-managerial duties." The director further stated that "[tlhe record does not establish that 
the U.S. entity contains the organizational complexity to support an executive position." 
On appeal, counsel for the petitioner asserts that the evidence of record shows that the beneficiary will be 
employed in a primarily managerial or executive capacity. Specifically, counsel states that "[elvidence was 
presented demonstrating that subordinate staff will relieve the Beneficiary from performing non-managerial 
duties, and therefore, the Beneficiary's duties are primarily managerial or executive in nature." Counsel 
further asserts that "[mlerely because the company's other employees are currently not receiving any 
remuneration and perform their duties on [a] voluntary basis does not disqualify them from being valid 
company employees." Counsel finally states that "[ilt must be noted that this is an internet compan:y and the 
'dot com' crisis has affected this company as well. Therefore, the company needs to be given an opportunity 
to establish itself during this crisis and move forward." The petitioner provides no new evidence to support 
these assertions. 
Upon review, counsel's assertions are not persuasive. When examining the executive or managerial capacity 
of the beneficiary, the AAO will look first to the petitioner's description of the job duties. See 8 C.F.R. 
2142()(3)(i). The petitioner's description of the job duties must clearly describe the duties to be 
performed by the beneficiary and indicate whether such duties are either in an executive or managerial 
capacity. Id. The petitioner must specifically state whether the beneficiary is primarily employed in a 
managerial or executive capacity. A beneficiary may not claim to be employed as a hybrid 
"executive/manager" and rely on partial sections of the two statutory definitions. 
In the instant case, the petitioner does not clearly specify whether the beneficiary will perform managerial or 
executive tasks. Counsel repeatedly states that the beneficiary's duties are "managerial or executive." The 
petitioner indicates that the beneficiary's duties include elements of the statutory definition of executive 
capacity, such as establishing goals and policies, and exercising wide latitude in discretionary clecision- 
making. Yet the petitioner discusses the beneficiary's managerial authority over subordinate employees, and 
ability to hire and fire employees. Thus, it appears that the petitioner intends to represent that the beneficiary 
will be primarily engaged in both managerial duties and executive duties. Therefore, the petitioner must 
establish that the beneficiary meets each of the four criteria set forth in the statutory definition for executive 
WAC-03-048-5278 1 
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duties under section 10 1 (a)(44)(B) of the Act, and the statutory definition for managerial duties under section 
101(a)(44)(A) of the Act. 
As stated above, in response to the director's request for evidence, the petitioner provided a lengthy list of 
duties that the beneficiary will allegedly perform. This list indicates that the beneficiary will have 
supervisory authority over a "Pnnt Art Director," "Website Art Director," and "other professionals of the 
company." The statement of the beneficiary's duties indicates that his subordinates will execute many tasks 
that he will review and manage. However, as noted by the director, the petitioner has not documented that it 
employs a subordinate staff as described. Evidence in the record reflects that the beneficiary is the petitioner's 
sole employee who receives compensation. The petitioner further submitted evidence to show that it utilized 
the services of an unpaid intern for 12 hours per week during the summer of 2002. The record contains no 
documentation to reflect that the intern continued to serve as the petitioner's Website Art Director as of 
November 27, 2002, the date of filing the petitioner, and no further documentation to establish that the 
petitioner employs a "Print Art Director" or "other professionals." While the petitioner indicates that the 
beneficiary's spouse works as the Print Art Director on an unpaid basis, the petitioner has submitted no 
documentation to establish this fact other than its own statements. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Treasure Cra) ofCalzjiornia, 14 I&N Dec. 190 (Reg. Comm. 1972). 
Counsel correctly states that "[mlerely because the company's other employees are currently not receiving any 
remuneration and perform their duties on [a] voluntary basis does not disqualify them from being valid 
company employees." However, the fact that the petitioner utilizes unpaid labor does not relieve it from the 
burden to prove that such employees actually provide services to the company. Again, going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Treasure Crafi of California, 14 I&N Dec. at 190. Thus, the record as presently 
constituted serves only to establish that the beneficiary is the petitioner's sole employee. 
The petitioner has failed to show that it employs a staff as described. As many of the beneficiary's duties 
involve the management and supervision of multiple staff members, the accuracy of the petitioner's 
description of his duties is in question. Doubt cast on any aspect of the petitioner's proof may, of course, lead 
to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of' the visa 
petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Thus, the petitioner's description of the 
beneficiary's job duties is not sufficient to establish that he will be employed in a primarily managerial and 
executive capacity. 
In the absence of sufficient subordinate staff members, it is evident that the beneficiary must perform 
numerous non-managerial and non-executive tasks. A company's size alone, without talung into account the 
reasonable needs of the organization, may not be the determining factor in denying a visa to a multinational 
manager or executive. See section 101(a)(44)(C), 8 U.S.C. § 1101(a)(44)(C). However, it is appropriate for 
CIS to consider the size of the petitioning company in conjunction with other relevant factors, such as a 
company's small personnel size, the absence of employees who would perform the non-managerial or non- 
executive operations of the company, or a "shell company" that does not conduct business in a regular and 
continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). As required by 
WAC-03-048-52781 
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section 10 1 (a)(44)(C) of the Act, if staffing levels are used as a factor in determining whether an individual is 
acting in a managerial or executive capacity, CIS must take into account the reasonable needs of the 
organization, in light of the overall purpose and stage of development of the organization. 
The petitioner operates as a provider of interactive media solutions, including web design and market 
research. It is evident that the reasonable needs of the petitioner require its employees to perform numerous 
non-managerial and non-executive tasks such as designing websites and print media materials, marketing the 
petitioner's services to potential and existing clients, answering questions about the petitioner's services, 
managing a checking account and paying bills, and answering the telephone. As the beneficiary is the sole 
documented employee of the petitioner, the record reflects that he must perform all of these nonqualifying 
tasks. Thus, the reasonable needs of the petitioner suggest that the beneficiary must spend a significant 
amount of time performing the tasks necessary to provide the petitioner's services. An employee who 
primarily performs the tasks necessary to produce a product or to provide services is not considered to be 
employed in a managerial or executive capacity. Matter of Church Scientology International, 19 I&N Dec. 
593, 604 (Comm. 1988). The petitioner has failed to establish that these non-managerial and non-executive 
tasks do not constitute the majority of the beneficiary's time. See 8 C.F.R. 4 214.2(1)(3)(ii). 
The petitioner indicates that its staffing will increase to up to eight employees in the near future. Further, 
counsel states that "[ilt must be noted that this is an internet company and the 'dot com' crisis has affected this 
company as well. Therefore, the company needs to be given an opportunity to establish itself during this 
crisis and move forward." However, the petitioner must establish eligibility at the time of iiling the 
nonimmigrant visa petition. A visa petition may not be approved at a future date after the petitioner or 
beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. 
Comm. 1978). There is no provision in the regulations that provides an exception due to economic 
challenges. 
Based on the foregoing, the petitioner has not established that the beneficiary will be employed in a primarily 
or managerial capacity, as required by 8 C.F.R. 3 214.2(1)(3). For this reason, the appeal will be dismissed. 
In visa petition proceedings, the burden of proving eligbility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 4 1361. The petitioner has not met this burden. 
ORDER: The appeal is dismissed.